Peyote, a 5,700 year tradition

Saving a plant that is at the same time, religious, criminal and endangered

Peyote (Lophophora williamsii) is a traditional plant that is used for ceremonial purposes among a range of Native Nations that make journeys to the natural habitat of Peyote, collect it and use it in ceremony and then return. Peyote has been in use for 5,700 years,¹ beginning with the Yaqui on the Mexico-U.S. border spreading north through the Plains. Today, its use is limited to members of the Native American Church as central to reaching a higher spiritual level. It is a psychedelic drug containing mescaline but has a different effect perhaps due to other compounds including isopellotine, anhalamine, and tyramine.²

In 1888, all Native American religious ceremonies, dancing, praying and any form of religious practice were made criminal by the federal government. This included the use of peyote. It was also made illegal in at least 15 states. However, the Bureau of Indian Affairs and Congress did not make peyote illegal from 1916 to 1937. A coalition of Native Americans with a peyote tradition, used the church legal structure as a way to incorporate under state law. In 1914 in Oklahoma, the First-born Church of Jesus Christ was incorporated. Then in 1918, the Native American Church in 1918 was formally incorporated in Oklahoma followed by incorporation in 11 other states.³

Today, peyote is a Schedule I substance under the Controlled Substances Act, and so illegal substance in the U.S.⁴, but an exception for possession and use has been made for Native Americans who use it ceremonially. Peyote has been legal for use in Native American ceremonial use since 1965.⁵

Federal law protecting the ceremonial use of peyote by Native Americans followed the U.S. Supreme Court decision in Employment Division v. Smith,⁶ 494 U.S. 872 (1990), held that the employee who was fired for using peyote could not collect unemployment funds because he had been fired for a criminal act.

Peyote is used by the Native American Church of North America and federally recognized tribes who have citizens who are members of the Native American Church include the Shoshone-Bannock, Navajo, Mandan, among the Plains Tribes, the Omaha, Ponca, Sioux and Winnebagos (Ho-Chunk).⁷

There are concerns with the recent psychedelic movement to treat depressive disorders may lead to seeking peyote for that use,⁸ as well as the movement to legalize drugs which can lead to charlatan uses of peyote on vulnerable public looking for enlightenment and “psychedelic tourism”.⁹

Testimony before the U.S. House of Representatives on May 8, 2024 by Jon Brady of the MHA Nation and President of the Native American Church of North America, asked for $5 million for Peyote Habitat Conservation Initiative and Demonstration Projects.¹⁰ The request is based on the authority of the American Indian Religious Freedom Act (AIRFA), specifically:

That henceforth it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of American Indian, Eskimo, Aleut, and Native Hawaiians including but not limited to access to sites, use and possession of sacred objects, and freedom to worship through ceremonials and traditional rites.¹¹

Natural conservation in situ would have to be in its natural habitat which is in only one geographical region of the United States — southwestern Texas along the border and the Rio Grand River.¹²

Texas is Key

Peyote habitat happens to be one hundred percent on privately owned land in southwestern Texas, and so any access to peyote is voluntary on the part of the land owners. These private land owners may be using the land for agriculture, development, road construction, wind farms and oil rigs, which they are completely entitled to do.

In October 2017, the National Council of Native American Churches with support from the Riverstyx Foundation met in Laredo, Texas bought 605 acres for cultivating peyote. The Indigenous Peyote Conservation Initiative (IPCI) was established as a 501(c)(3) in 2018.¹³ The IPCI is Native-led and they have worked to cultivate peyote in southwestern Texas. The traditional geographic area will likely greatly impact the success of the growing operation.

Land owners are being offered conservation easements to reduce the destruction of the natural habitat of the peyote plants. The “root plowing” according to testimony is destroying any future season of peyote, and at the current rate, will destroy peyote in its natural habitat in one generation.

Texas has also listed the star cactus (Astrophytum asterias) as “threatened” under the Texas …. which is often mistaken for peyote, and grows with it in its habitat.¹⁴ However, peyote is not listed for any kind of protection by the state or federal endangered species acts. In Mexico, it is “subject to special protection” on a list of species at risk of extinction. The IUCN, an international organization for the preservation of species, lists peyote on the “red list” which is the highest status of endangerment.

Native Nations are faced with the prospect of crossing the Mexico border to make agreements with Mexico and its states to have access to the greater abundance of peyote there. There is precedent for treaties between Native Nations and other countries, including one in the 1990s between the Seminole Nation and a Carribbean Nation involving cattle production. States with international borders have dozens of limited treaties for emergency services and a range of other reasons with neighboring nations. So it would not be unprecedented for a Native Nation to sign an agreement/treaty to have access to peyote in that Mexican state.

Freedom of Religion Solutions

The Federal government has a trust responsibility to Native nations to act in their best interest and for sustaining their governance. Traditions bind governments and their people, and the traditions of Tribal governments should be protected. Since peyote is a tradition that has been characterized as a religious practice in the Native American Church, the First Amendment for the Free Exercise of religion is the approach that has been used to protect it. But anytime land has been part of the analysis, the federal courts have not, even once, upheld the Free Exercise of religion for Native Americans. They have consistently found the “substantial burden” test was not met by failing to be great enough, even to the extent of complete contamination of the site¹⁵ or complete destruction of the sacred site,¹⁶ for example.

Any attempt to actively preserve peyote would be challenged as a violation of the Establishment Clause, which prohibits the entanglement of government and religion. The attempt of the National Park Service to limit climbing of a sacred mountain during religious ceremonial periods for Native American Nations was suggested that it would be a violation of the Establishment Clause if the NPS made the ban mandatory rather than voluntary.¹⁷

So it is unlikely that the First Amendment, Free Exercise Clause would protect and preserve peyote in its natural habitat.

Environmental Solutions

The best solution is to preserve the traditional “Peyote Gardens” as they are called, through conservation easements. To do this, private landowners agree to these easements that would allow access to specific Native Nations with accountability that makes the private land owner comfortable. There is precedent for this approach, too. In South Carolina, much of the Catawba lands were taken and sold, and while the reservation exists today, traditional lands go beyond the reservation border. On some of those lands, clay for the Catawba’s famous Native American pottery making, of the unique kind that is needed, is found. The private property owner agreed to access to Tribal members for the limited purpose of gathering clay during certain times. That worked well until the landowner passed away, and the land went to a state public lands system. At that point, the Catawba Nation was able to make a co-management agreement with the state to continue access to the important clay resource.

If any of my Texas readers (or any other readers) know property owners in this area of the map, please pass this along to them and maybe they will follow up with a creative and rewarding agreement. Preserving the peyote plant in its natural habitat in the only unique area in America where it can be found, and continue the tradition of Native Nations to access its spiritual importance is worth saving.

1. https://psychedelicreview.com/the-compounds-in-psychedelic-cacti/

2. https://psychedelicreview.com/the-compounds-in-psychedelic-cacti/

3. https://www.britannica.com/topic/Native-American-Church

4. https://www.dea.gov/sites/default/files/2020-06/Peyote%20and%20Mescaline-2020_0.pdf

5. https://www.law.cornell.edu/uscode/text/42/1996a

6. Employment Division v. Smith, 494 U.S. 872 (1990).

7. http://plainshumanities.unl.edu/encyclopedia/doc

8. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9553847/

9. https://trippin.world/feature/the-ethics-around-psychedelic-tourism

10. https://docs.house.gov/meetings/AP/AP06/20240508/117270/HHRG-118-AP06-Wstate-BradyJ-20240508.pdf

11. 42 U.S.C. sec. 1996 at https://www.nps.gov/ethnography/aah/aaheritage/HPNe.htm

12. https://docs.house.gov/meetings/AP/AP06/20240508/117270/HHRG-118-AP06-Wstate-BradyJ-20240508.pdf

13. https://www.ipci.life/about

14. https://tpwd.texas.gov/huntwild/wild/wildlife_diversity/nongame/listed-species/plants/

15. Navajo Nation v. United States Forest Service, 479 F.3d 1024 (9th Cir. 2007),^[1] reversed after rehearing en banc, 535 F.3d 1058 (9th Cir. 2008)

16. Apache Stronghold case, 9th Circuit

17. Bear Lodge Multiple Use Ass’n v. Babbitt, 175 F.3d 814 (10th Cir. 1998), aff’g 2 F.Supp. 2d 1448 (D. Wyo. 1998).